K.Selvaraj v. J.Narayanan & Ors.

In the High Court of Judicature at MadrasDated :: 28.01.2008CoramThe Honourable Mr. Justice A.C.ARUMUGA PERUMAL ADITYANC.R.P. (NPD) Nos.787 and 788 of 2006and C.M.P.No. 6583 and V.C.M.P.No.380 of 2006K.Selvaraj ...Petitioner in both the C.R.Ps.(Tenant) v1.J.Narayanan2.J.Deepa...Respondents in both the C.R.Ps.(Landlords) Civil Revision Petitions filed under Section 25 of theTamil Nadu Buildings (Lease and Rent Control) Act 1960 prayingto set aside the Common fair and decretal order passed by thelearned VIII Judge, Court of Small Causes, Chennai inR.C.A.Nos.994 and 1496 of 2003 dated 16.11.2005, confirming thefair and decretal order passed in R.C.O.P.No. 2227 of 2002 dated18.07.2003 by the learned Rent Controller (XIV Judge), Court ofSmall Causes, Chennai and R.C.O.P.No.871 of 2003 DATED 9.10.2003by the learned Rent Controller (XII Judge), Court of SmallCauses, Chennai.For petitioner: Mr.S.Parthasarathy Senior Advocate for Mr.P.GopalanFor respondent: Mr.Chandra Bose, Advocate for Mrs.Sarojini Govindan O R D E RThese two C.R.P.NPDs. had arisen against the commonJudgment of the learned Rent control Appellate Authority (VIIIJudge), Court of Small Causes, Chennai in R.C.A.No.994 of 2003and 1496 of 2003. R.C.A.No.994 of 2003 had arisen against thefair and decretal order in R.C.O.P.No.2227 of 2002 on the fileof the XIV Judge, Court of Small Causes, Chennai andR.C.A.No.1496 of 2003 had arisen against the fair and decretalorder in R.C.O.P.No.871 of 2003 on the file of the learned XIIJudge, Court of Small Causes, Chennai.2. R.C.O.P.No.2227 of 2002 was filed by the landlord underSection 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent https://hcservices.ecourts.gov.in/hcservices/ Control) Act 1960 (hereinafter referred to as 'the Act') foreviction on the ground that 19 months' rent for the petitionscheduled building is in arrears and that the tenant hadcommitted wilful default in payment of rent. Learned Rentcontroller after hearing the submissions made by the learnedcounsel for the petitioners as well as the respondent and alsoafter taking into consideration Ex.R.1 the sole document filedin the Rent Control Proceedings on behalf of the respondenttherein, had come to a conclusion that the tenant/revisionpetitioner had committed wilful default in payment of rent for19 months and accordingly allowed the petition, orderingeviction of the tenant/revision petitioner from the petitionschedule building, giving two months' time to vacate and handover vacant possession of the petition schedule property.Aggrieved by the findings of the learned Rent Controller (XIIJudge, Court of Small Causes), Chennai, the tenant had preferredan appeal before the Rent Control Appellate Authority (VIIIJudge, Court of Small Causes), Chennai in R.C.A.No.994 of 2003who, after finding no merits for interference in the findings ofthe learned Rent Controller, had dismissed the R.C.A.No.994 of2003 thereby confirming the order of the learned Rent Controllerin R.C.O.P.No.2227 of 2002. The Rent Control AppellateAuthority had given a month's time for the tenant to vacate andhand over vacant possession to the landlord. Aggrieved by thefindings of the learned Rent Control Appellate Authority,C.R.P.No.787 of 2006 has been preferred by the revisionpetitioner/tenant.3. R.C.O.P.No.871 of 2003 was filed by the tenant underSection 8(5) of the Act for permitting him to deposit thearrears of rent from January, 2003. The learned Rent Controller,after giving a definite finding to the effect that the arrearsof rent is from May 2001, has come to the conclusion that thereis no ground for permitting the tenant to deposit rent fromJanuary, 2003 and accordingly dismissed the petition filed bythe tenant in R.C.O.P.No.871 of 2003. Aggrieved by the findingsof the learned Rent Controller, the tenant had preferredR.C.A.No.1496 of 2003 on the file of the VIII Judge, Court ofSmall Causes, Chennai who after hearing both the R.C.A.Nos.994of 2003 and 1496 of 2003 jointly, in his common judgment, haddismissed both the appeals. Against the findings of the learnedRent Control Appellate Authority in R.C.A.No.1496 of 2003 thetenant had preferred C.R.P.NO.788 of 2006.4. The findings of the Courts below in both the R.C.As.areconcurrent in nature. Unless it is shown before this Court thatthe findings of the Rent Control Appellate Authority is perverseand the findings have been given against evidence, this Court,sitting in exercising the powers of revision, cannot interfere https://hcservices.ecourts.gov.in/hcservices/ with the findings of the Courts below, which is concurrent innature.5. Learned counsel for the revision petitioner relying onthe decision reported in 2003 (3) CTC 348 (P.M.Punnose vK.M.Munneruddin and others) would contend that in the absenceof any demand by way of legal notice as contemplated under theproviso to Section 10(2) (i) of the Act, both the Courts belowhave erroneously come to the conclusion that the defaultcommitted by the tenant as wilful default, which is notpermissible under law.6. The facts of the case in 2003 (3)CTC 348 decided by theHon'ble Supreme Court are as follows:The petition was filed under Section 10(2)(i) of the TamilNadu Buildings (Lease and Rent Control) Act 1960 for eviction.The learned Rent Controller had allowed the petition evictingthe tenant on the ground that he had committed wilful default inpayment of rent. The tenant preferred an appeal which wasallowed by the Rent control Appellate Authority. The landlordpreferred a revision under Section 25 of the Act which has beenallowed, setting aside the judgment of the learned Rent ControlAppellate Authority, restoring the orders of the learned RentController. Against which, Civil Appeal No.3121 of 2000 waspreferred before the Apex Court.7. The landlord in that case had purchased the suitproperty from the predecessor-in-title under a sale deed dated09.01.1987. The appellant/tenant was residing in the buildingas a tenant from the date of purchase of the building by thelandlord on 09.01.1987 for a monthly rent of Rs.400/-. Afterthe purchase of the property by the respondents/landlords, theappellant/tenant was paying rent to the respondents/landlords.The rent for the month January, 1987 was remitted by theappellant/tenant to the landlords who are five in numbers underfive money orders at Rs.80/- each. Thereafter, theappellant/tenant was paying the rent to therespondents/landlords through money order at the rate ofRs.400/- to the first respondent. There was some controversyin respect of the exact rent. Even after January, 1987 that is,the purchase of the petition schedule property therein, thetenant was regularly paying the rent to thelandlords/respondents through money orders for 17 months. Therent due for September 1988 was also paid by theappellant/tenant and received by the respondents/landlords.Thereafter, the dispute arose between the parties regardingfixation of rent. Before the appellate authority, it wascontended on behalf of the tenant that the landlords in thatcase had not demanded the rent by way of notice and hence thedefault made by the appellant/tenant in payment of rent cannot https://hcservices.ecourts.gov.in/hcservices/ be construed as wilful default, since the tenant has all alongbeen paying the admitted rent to the landlords even after theirpurchase in January, 1987. Only under such context it has beenheld by the Hon'ble Apex Court as follows:"14. The explanation appended to sub-section(2) of Section 10 of the Act enacts a rule ofevidence. After the issuance of two month'snotice claiming the rent, the default by tenantshall be construed as wilful raising apresumption in that regard and it will be for thetenant to show availability of sufficient causeor circumstances beyond his control to escapefrom the consequence of default. The landlord isnot prevented from initiating proceedings foreviction on the ground of default under Section10(2)(i) of the Act, without serving a noticeunder the Explanation but in that case it will befor the landlord to make out a case of wilfuldefault by tenant failing which the Controllermay exercise his discretion under the provisogiving the tenant a reasonable time, notexceeding fifteen days for payment or tender." 8. But in the case on hand, it is the definite case of thelandlord/respondent herein that appellant/tenant is in defaultof payment of rent from May, 2001 to November, 2002 that is for19 months. It was contended on behalf of the revisionpetitioner/tenant herein, before the Court below on the basisof Ex.R.1 notice dated 22.02.2003 that the tenant was inarrears only from December 2002. But a reading of Ex.R.1 noticewould go to show that the tenant had demanded that the arrearsof rent is to be adjusted towards the advance amount ofRs.20,000/- already paid by the tenant to the landlord at thetime of entering into the agreement of tenancy. Only afteradjusting the arrears of rent towards the advance amount ofRs.20,000/-, according to the tenant, the arrears of rent willcommence from December, 2002. So, inference which can be drawnfrom Ex.R1 is that there was arrears of rent for a period of 19months to the tune of Rs.19,000/- and according to the tenant itis to be adjusted towards advance amount of Rs.20,000/- paid bythe tenant to the landlord. As correctly observed by the Courtbelow that there is absolutely no evidence or material placed onthe side of the tenant to show that he had already paid rent for19 months ie., from May, 2001 to November, 2002.9. The other judgment relied upon by the revisionpetitioner in 1969 M.L.J.reports 137 (S.Venkataramanaswami https://hcservices.ecourts.gov.in/hcservices/ Ayyar v S.Abdul Wahab (No.2) will not be applicable to thepresent facts of the case.10. After admitting the arrears of rent for 19 months, itis not open to the tenant to ask the landlord to adjust the samewith the advance amount he had paid, until he vacates and handover vacant possession of the building to the landlord. Even inEx.R.1 notice, the stand taken by the tenant is that he iswilling to vacate and hand over vacant possession to thelandlord.11. Learned counsel for the respondent/landlord in both therevisions would state that even during the pendency of theappeal, the tenant had paid Rs.8000/- towards eight monthsarrears of rent upto 22.09.2003, on 22.10.2005. For thesubsequent period, that is from November, 2003 to September,2005 for 23 months, the tenant had paid Rs.23,000/-. But thetenant had not paid the arrears of rent for 19 months from May,2001 to November, 2002.12. It is brought to the notice of this Court that as perthe order passed by this Court in C.M.p.No.6583 of 2006 inC.R.P. NPD No.787 of 2006 dated 09.01.2008, the tenant had notchosen to deposit the arrears of rent of Rs.19,000/- before thelearned Rent Controller to the credit of R.C.O.p.No.2227 of2002.13. Learned counsel for the respondent/landlord relyingupon the decision reported in 1998 (3) Law Weekly, 159 (B.AnrajPipada v V.Umayal) would submit that if the tenant fails to payrent regularly even during the pendency of the evictionproceedings, then the default is to be considered as wilfuldefault. The exact observation of the learned Judge of thisCourt in the above said dictum relevant for the purpose ofdeciding this case runs as follows:" When the eviction proceedings havebeen initiated on the ground of wilfuldefault, one would expect the tenant to paythe rent regularly every month at leastafter the initiation of the proceedings.When the tenant has failed to pay the rentregularly even during the pendency of theproceedings, then there is no doubt that hisconduct in paying the rent as he likes, willamount to wilful default".. (1997 2 L.W.501 (Sundaram Steel Co. etc. V S.Lakshmi and1997 II MLJ, 467 (Poorman's DepotRegistration Firm v Krishnan have beenreferred to). https://hcservices.ecourts.gov.in/hcservices/

14. After the Courts below have come to a definiteconclusion under Section 10(2)(i) of the Act in R.C.O.P.No.2227of 2002 that there is wilful default in payment of rent for 19months, they have rightly dismissed the application filed by thetenant in R.C.O.P.No.871 of 2003 under Section 8(5) of the Act.15. I do not find any perverseness, or irregularity orillegality in the findings of the Courts below, warranting anyinterference in these revision petitions by this Court.16. In fine, C.R.P.NPD Nos.787 and 788 of 2006 aredismissed confirming the Judgment in R.C.A.Nos.994 of 2003 and1496 of 2003, respectively on the file of the VIII Judge, Courtof Small Causes, Chennai. No costs.Learned counsel for the revision petitioner/tenant submitsthat the tenant may be given three months' time to vacate andhand over vacant possession. Learned counsel for therespondent/landlord has no objection for granting one month'stime for the tenant to vacate and hand over possession of thepetition schedule building. Accordingly, the revisionpetitioner/tenant is given a month's time from today to vacateand hand over vacant possession of the petition schedulebuilding, along with arrears of rent, to therespondent/landlord.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkvsgTo1. The VIII Judge, Court of Small Causes, Chennai2. The XII Judge, Court of Small Causes, Chennai3. The XIV Judge, Court of Small Causes, Chennai4. The Record Keeper, VR Section, High Court, Madras.104. One cc to Mr.P.Gopalan , advocate SR.No.3703two ccs to Mr.Sarojini Govindan, advocate SR.No.3515, 3516)C.R.P.Nos.787 and 788 of 2006JRG[CO]SKY/7/2